212 220 FEDERAL RULES DECISIONS
F.R.D. 208, 216 (D.Conn.1982) (denying class
certification under Rule 23(b)(2) based in
part on the fact that such relief ‘‘is directed
primarily against the [defendant] custodians
of certain records, and as such it does not
apply to all of the defendants.’’).
Lastly, because I have found that certifica-
tion is appropriate under Rule 23(b)(3), there
is no benefit to additionally certifying the
class under (b)(2). See Chateau De Ville
Prods., Inc. v. Tams–Witmark Music Li-
brary, Inc., 586 F.2d 962, 966 n. 14 (2d
Cir.1978) (noting that when a district court
certifies a class under both Rule 23(b)(2) and
(b)(3), ‘‘major problems can arise TTT where
different procedural consequences attach de-
pending upon the subsection used’’); see also
Bolanos, 212 F.R.D. at 157 n. 11 (‘‘If, as
recommended, a Rule 23(b)(3) class is certi-
fied here, TTT, it would not be error to certify
the class under Rule 23(b)(2) also, but it
would add nothing to do so and in fact would
complicate matters.’’) (internal citation omit-
ted). Thus, class certification under 23(b)(2)
is denied.
IV. CONCLUSION
For the foregoing reasons, plaintiffs’ mo-
tion for class certification is conditionally
granted if, within thirty days of this Order:
(1) there are at least two plaintiffs who are
willing and qualified to serve as a co-class
representatives; (2) the class representatives
agree to work with a committee of non-
American class members; and (3) class coun-
sel agree to work with Fagan as liaison coun-
sel to the non-American class members.
SO ORDERED.
, initions.
part of the Kaprun train have no role in deciding
whether the train will continue to operate or
Laura ZUBULAKE, Plaintiff,
v.
UBS WARBURG LLC, UBS Warburg,
and UBS AG, Defendants.
No. 02 Civ. 1243(SAS).
United States District Court,
S.D. New York.
Oct. 22, 2003.
Background: In action by female employ-
ee under federal, state, and city law for
gender discrimination, failure to promote,
and retaliation, employee moved for sanc-
tions against employer for its failure to
preserve backup tapes containing poten-
tially relevant e-mail correspondence of
key employees.
Holdings: The District Court, Scheindlin,
J., held that:
(1) employer had duty to preserve backup
tapes;
(2) reconsideration of Court’s prior cost-
shifting order regarding backup tapes
was not appropriate;
(3) adverse inference instruction was not
warranted; but
(4) employer would be ordered to pay
costs of deposing certain witnesses.
Motion granted in part.
1. Federal Civil Procedure O1636.1
‘‘Spoliation’’ is the destruction or signifi-
cant alteration of evidence, or the failure to
preserve property for another’s use as evi-
dence in pending or reasonably foreseeable
litigation.
See publication Words and Phrases
for other judicial constructions and def-
2. Evidence O78
Spoliation of evidence germane to proof
of an issue at trial can support an inference
that the evidence would have been unfavora-
advertise.
 ZUBULAKE v. UBS WARBURG LLC
Cite as 220 F.R.D. 212 (S.D.N.Y. 2003)
ble to the party responsible for its destruc-
tion.
3. Federal Civil Procedure O1636.1
Determination of an appropriate sanc-
tion for spoliation, if any, is confined to the
sound discretion of the trial judge, and is
assessed on a case-by-case basis.
4. Federal Civil Procedure O1636.1
Authority to sanction litigants for spolia-
tion arises jointly under the Federal Rules of
Civil Procedure and the court’s own inherent
powers.
5. Federal Civil Procedure O1551
Obligation to preserve evidence arises
when the party has notice that the evidence
is relevant to litigation or when a party
should have known that the evidence may be
relevant to future litigation.
6. Federal Civil Procedure O1551
In action by female employee for gender
discrimination, failure to promote, and retali-
ation, employer had duty to preserve backup
tapes containing potentially relevant e-mails
which were not otherwise available and in-
volved key employees; duty attached when
relevant employees anticipated litigation,
even though employee had not yet requested
tapes or filed complaint.
7. Federal Civil Procedure O1551
As a general rule, a party need not
preserve all backup tapes for e-mail even
when it reasonably anticipates litigation.
8. Federal Civil Procedure O1636.1
Anyone who anticipates being a party or
is a party to a lawsuit must not destroy
unique, relevant evidence that might be use-
ful to an adversary.
9. Federal Civil Procedure O1551
While a litigant is under no duty to keep
or retain every document in its possession, it
is under a duty to preserve what it knows, or
reasonably should know, is relevant in the
action, is reasonably calculated to lead to the
discovery of admissible evidence, is reason-
ably likely to be requested during discovery
and/or is the subject of a pending discovery
request.
213
10. Federal Civil Procedure O1551, 1636.1
Once a party reasonably anticipates liti-
gation, it must suspend its routine document
retention/destruction policy and put in place
a litigation hold to ensure the preservation of
relevant documents; as a general rule, that
litigation hold does not apply to inaccessible
e-mail backup tapes (e.g., those typically
maintained solely for the purpose of disaster
recovery), which may continue to be recycled
on the schedule set forth in the company’s
policy, but, on the other hand, if backup
tapes are accessible (i.e., actively used for
information retrieval), then such tapes would
likely be subject to the litigation hold.
11. Federal Civil Procedure O1551
If a company can identify where particu-
lar employee documents are stored on e-mail
backup tapes, then the tapes storing the
documents of key players to existing or
threatened litigation should be preserved if
the information contained on those tapes is
not otherwise available; this exception applies
to all backup tapes.
12. Federal Civil Procedure O1636.1
On motion by employee suing for gender
discrimination, failure to promote, and retali-
ation, reconsideration of cost-shifting order,
which directed parties to share cost of restor-
ing certain backup tapes, was not appropri-
ate remedy for employer’s failure to preserve
backup tapes containing potentially relevant
and otherwise unavailable e-mail correspon-
dence of key employees, since evidence that
certain e-mails had not been retained and
that certain backup tapes were missing had
informed District Court’s resolution of origi-
nal cost-shifting motion.
13. Federal Civil Procedure O2173
Adverse inference instruction is an ex-
treme sanction for spoliation of evidence and
should not be given lightly.
14. Federal Civil Procedure O2173
Party seeking an adverse inference in-
struction or other sanctions based on the
spoliation of evidence must establish the fol-
lowing three elements: (1) that the party
having control over the evidence had an obli-
gation to preserve it at the time it was
214 220 FEDERAL RULES DECISIONS
destroyed; (2) that the records were de-
stroyed with a culpable state of mind, includ-
ing ordinary negligence, and (3) that the
destroyed evidence was relevant to the par-
ty’s claim or defense such that a reasonable
trier of fact could find that it would support
that claim or defense.
15. Federal Civil Procedure O1636.1
When evidence is destroyed in bad faith
(i.e., intentionally or willfully), that fact alone
is sufficient to demonstrate relevance to sup-
port sanctions for spoliation of evidence; by
contrast, when the destruction is negligent,
relevance must be proven by the party seek-
ing the sanctions.
16. Federal Civil Procedure O2173
Even though employer had duty to pre-
serve backup tapes, containing e-mail corre-
spondence of key employees which was po-
tentially relevant to female employee’s suit
for gender discrimination, failure to promote,
and retaliation, and even though employer’s
destruction of certain backup tapes, covering
time period when relevant employees antici-
pated litigation, was negligent, and of others,
covering time period after employee filed
Equal Employment Opportunity Commission
(EEOC) charge, was grossly negligent, if not
reckless, employer’s spoliation did not war-
rant adverse inference instruction, absent ev-
idence that destroyed evidence would have
been favorable to employee.
17. Evidence O78
In cases of negligent, grossly negligent,
or reckless destruction of evidence, it cannot
be inferred from the conduct of the spoliator
that the evidence would even have been
harmful to him; only in the case of willful
spoliation is the spoliator’s mental culpability
itself evidence of the relevance of the docu-
ments destroyed.
18. Federal Civil Procedure O1637
In action by female employee for gender
discrimination, failure to promote, and retali-
ation, employer who destroyed potentially
1. Mason Cooley, City Aphorisms, Sixth Selection
(1989).
2. See Adam I. Cohen & David J. Lender, Elec-
tronic Discovery: Law and Practice § 3.01 (Aspen
Law & Business, publication forthcoming 2003)
relevant backup tapes which it had duty to
preserve would be required to pay costs for
re-deposing certain witnesses for limited pur-
pose of inquiring into issues raised by de-
struction of evidence and any newly discover-
ed e-mails.
James A. Batson, Liddle & Robinson,
LLP, New York City, for Plaintiff.
Kevin B. Leblang, Norman C. Simon,
Kramer Levin Naftalis & Frankel LLP, New
York City, for Defendants.
OPINION AND ORDER
SCHEINDLIN, District Judge.
‘‘Documents create a paper reality we call
proof.’’ 1 The absence of such documentary
proof may stymie the search for the truth.
If documents are lost or destroyed when they
should have been preserved because a litiga-
tion was threatened or pending, a party may
be prejudiced. The questions presented here
are how to determine an appropriate penalty
for the party that caused the loss and—the
flip side—how to determine an appropriate
remedy for the party injured by the loss.
Finding a suitable sanction for the destruc-
tion of evidence in civil cases has never been
easy. Electronic evidence only complicates
matters. As documents are increasingly
maintained electronically, it has become easi-
er to delete or tamper with evidence (both
intentionally and inadvertently) and more dif-
ficult for litigants to craft policies that ensure
all relevant documents are preserved.2 This
opinion addresses both the scope of a liti-
gant’s duty to preserve electronic documents
and the consequences of a failure to preserve
documents that fall within the scope of that
duty.
I. BACKGROUND
This is the fourth opinion resolving discov-
ery disputes in this case. Familiarity with
(‘‘Unlike paper documents, electronic documents
can be updated or changed without leaving an
easily recognizable trace. Therefore, unique
questions may arise as to the scope of a party’s
duty to preserve evidence in electronic form.’’).
 ZUBULAKE v. UBS WARBURG LLC
Cite as 220 F.R.D. 212 (S.D.N.Y. 2003)
the prior opinions is presumed,3 and only
background information relevant to the in-
stant dispute is described here. In brief,
Laura Zubulake, an equities trader who
earned approximately $650,000 a year with
UBS,4 is suing UBS for gender discrimina-
tion, failure to promote, and retaliation under
federal, state, and city law. She has re-
peatedly maintained that the evidence she
needs to prove her case exists in e-mail
correspondence sent among various UBS em-
ployees and stored only on UBS’s computer
systems.
On July 24, 2003, I ordered the parties to
share the cost of restoring certain UBS back-
up tapes that contained e-mails relevant to
Zubulake’s claims.5 In the restoration effort,
the parties discovered that certain backup
tapes are missing. In particular:
Missing Monthly
Individual/Server Backup Tapes
Matthew Chapin April 2001
(Zubulake’s immediate
supervisor)
Jeremy Hardisty June 2001
(Chapin’s supervisor)
Andrew Clarke and April 2001
Vinay Datta
(Zubulake’s
coworkers)
Rose Tong (human Part of June 2001,
resources) July 2001, August
2001, and October
2001
(UBS has located certain weekly backup
tapes to fill some of the gaps created by the
lost monthly tapes).
3. See Zubulake v. UBS Warburg, LLC, 217 F.R.D.
309 (S.D.N.Y.2003) (‘‘Zubulake I’’ ) (addressing
the legal standard for determining the cost allo-
cation for producing e-mails contained on back-
up tapes); Zubulake v. UBS Warburg, LLC, No.
02 Civ. 1243, 2003 WL 21087136 (S.D.N.Y. May
13, 2003) (‘‘Zubulake II’’ ) (addressing Zubu-
lake’s reporting obligations); Zubulake v. UBS
Warburg LLC, 216 F.R.D. 280 (S.D.N.Y.2003)
(‘‘Zubulake III’’ ) (allocating backup tape restora-
tion costs between Zubulake and UBS).
4. See 6/20/03 Letter from James A. Batson, Zubu-
lake’s counsel, to the Court.
5. Zubulake III, 216 F.R.D. 280.
215
In addition, certain isolated e-mails—creat-
ed after UBS supposedly began retaining all
relevant e-mails—were deleted from UBS’s
system, although they appear to have been
saved on the backup tapes. As I explained
in Zubulake III, ‘‘certain e-mails sent after
the initial EEOC charge—and particularly
relevant to Zubulake’s retaliation claim—
were apparently not saved at all. For exam-
ple, [an] e-mail from Chapin to Joy Kim
[another of Zubulake’s coworkers] instruct-
ing her on how to file a complaint against
Zubulake was not saved, and it bears the
subject line ‘UBS client attorney priviledge
[sic] only,’ although no attorney is copied on
the e-mail. This potentially useful e-mail
was deleted and resided only on UBS’s back-
up tapes.’’ 6
Zubulake filed her EEOC charge on Au-
gust 16, 2001; the instant action was filed on
February 14, 2002. In August 2001, in an
oral directive, UBS ordered its employees to
retain all relevant documents.7 In August
2002, after Zubulake specifically requested e-
mail stored on backup tapes, UBS’s outside
counsel orally instructed UBS’s information
technology personnel to stop recycling back-
up tapes.8
Zubulake now seeks sanctions against
UBS for its failure to preserve the missing
backup tapes and deleted e-mails. In partic-
ular, Zubulake seeks the following relief: (a)
an order requiring UBS to pay in full the
costs of restoring the remainder of the
monthly backup tapes; (b) an adverse infer-
ence instruction against UBS with respect to
the backup tapes that are missing; and (c) an
order directing UBS to bear the costs of re-
deposing certain individuals, such as Chapin,
6. Zubulake III, 216 F.R.D. at 287.
7. See 3/26/03 Oral Argument Transcript at 40
(Statement of Kevin Leblang, counsel to UBS)
(‘‘As of August when Ms. Zubulake filed a charge,
everyone was told nothing gets deleted and we
searched everyone’s computer, everyone’s hard
files, the human resources files and the legal
files.’’).
8. See 9/26/03 Oral Argument Transcript
(‘‘9/26/03 Tr.’’) at 18 (Statement of Norman C.
Simon, counsel to UBS); see also 10/14/03 Letter
from Norman Simon to the Court (‘‘10/14/03
Ltr.’’) at 2.
216 220 FEDERAL RULES DECISIONS
concerning the issues raised in newly pro-
duced e-mails.
II. LEGAL STANDARD
[1–4] Spoliation is ‘‘the destruction or
significant alteration of evidence, or the fail-
ure to preserve property for another’s use as
evidence in pending or reasonably foresee-
able litigation.’’ 9 The spoliation of evidence
germane ‘‘to proof of an issue at trial can
support an inference that the evidence would
have been unfavorable to the party responsi-
ble for its destruction.’’ 10 However, ‘‘[t]he
determination of an appropriate sanction for
spoliation, if any, is confined to the sound
discretion of the trial judge, and is assessed
on a case-by-case basis.’’ 11 The authority to
sanction litigants for spoliation arises jointly
under the Federal Rules of Civil Procedure
and the court’s own inherent powers.12
III. DISCUSSION
It goes without saying that a party can
only be sanctioned for destroying evidence if
it had a duty to preserve it. If UBS had no
such duty, then UBS cannot be faulted. I
begin, then, by discussing the extent of a
party’s duty to preserve evidence.
A. Duty to Preserve
[5] ‘‘The obligation to preserve evidence
arises when the party has notice that the
evidence is relevant to litigation or when a
9. West v. Goodyear Tire & Rubber Co., 167 F.3d
776, 779 (2d Cir.1999).
10. Kronisch v. United States, 150 F.3d 112, 126
(2d Cir.1998).
11. Fujitsu Ltd. v. Federal Express Corp., 247 F.3d
423, 436 (2d Cir.2001).
12. See Turner v. Hudson Transit Lines, Inc., 142
F.R.D. 68, 72 (S.D.N.Y.1991) (Francis, M.J.) (cit-
ing Fed.R.Civ.P. 37). See also Shepherd v. Ameri-
can Broadcasting Companies, 62 F.3d 1469, 1474
(D.C.Cir.1995) (‘‘When rules alone do not pro-
vide courts with sufficient authority to protect
their integrity and prevent abuses of the judicial
process, the inherent power fills the gap.’’); id.
at 1475 (holding that sanctions under the court’s
inherent power can ‘‘include TTT drawing ad-
verse evidentiary inferences’’). See generally Co-
hen & Lender, supra note 2, §§ 3.02[B][1]-[2].
13. Fujitsu, 247 F.3d at 436 (citing Kronisch, 150
F.3d at 126). See also Silvestri v. General Motors
party should have known that the evidence
may be relevant to future litigation.’’ 13
Identifying the boundaries of the duty to
preserve involves two related inquiries:
when does the duty to preserve attach, and
what evidence must be preserved?
1. The Trigger Date
In this case, the duty to preserve evidence
arose, at the latest, on August 16, 2001, when
Zubulake filed her EEOC charge.14 At that
time, UBS’s in-house attorneys cautioned
employees to retain all documents, including
e-mails and backup tapes, that could poten-
tially be relevant to the litigation.15 In meet-
ings with Chapin, Clarke, Kim, Hardisty,
John Holland (Chapin’s supervisor), and Do-
minic Vail (Zubulake’s former supervisor)
held on August 29–31, 2001, UBS’s outside
counsel reiterated the need to preserve docu-
ments.16
But the duty to preserve may have arisen
even before the EEOC complaint was filed.
Zubulake argues that UBS ‘‘should have
known that the evidence [was] relevant to
future litigation,’’ 17 as early as April 2001,
and thus had a duty to preserve it. She
offers two pieces of evidence in support of
this argument. First, certain UBS employ-
ees titled e-mails pertaining to Zubulake
‘‘UBS Attorney Client Privilege’’ starting in
April 2001, notwithstanding the fact that no
attorney was copied on the e-mail and the
Corp., 271 F.3d 583, 591 (4th Cir.2001) (‘‘The
duty to preserve material evidence arises not
only during litigation but also extends to that
period before the litigation when a party reason-
ably should know that the evidence may be rele-
vant to anticipated litigation.’’) (citing Kronisch,
150 F.3d at 126).
14. See 9/26/03 Tr. at 16 (statement of Norman C.
Simon agreeing that the duty to preserve at-
tached no later than August 2001).
15. See 10/14/03 Ltr. and attached exhibits (re-
flecting correspondence from UBS’s in-house
counsel reiterating, in writing, the August 2001
oral directive to UBS employees to preserve doc-
uments).
16. See id. at 1 n. 1.
17. Fujitsu, 247 F.3d at 436.
 ZUBULAKE v. UBS WARBURG LLC
Cite as 220 F.R.D. 212 (S.D.N.Y. 2003)
substance of the e-mail was not legal in
nature. Second, Chapin admitted in his de-
position that he feared litigation from as
early as April 2001:
Q: Did you think that Ms. Zubulake was
going to sue UBS when you received
these documents?
A: What dates are we talking about?
Q: Late April 2001.
A: Certainly it was something that was in
the back of my head.18
[6] Merely because one or two employees
contemplate the possibility that a fellow em-
ployee might sue does not generally impose a
firm-wide duty to preserve. But in this case,
it appears that almost everyone associated
with Zubulake recognized the possibility that
she might sue. For example, an e-mail au-
thored by Zubulake’s co-worker Vinnay Dat-
ta, concerning Zubulake and labeled ‘‘UBS
attorney client priviladge [sic],’’ was distrib-
uted to Chapin (Zubulake’s supervisor), Hol-
land and Leland Tomblick (Chapin’s supervi-
sor), Vail (Zubulake’s former supervisor), and
Andrew Clarke (Zubulake’s co-worker) in
late April 2001.19 That e-mail, replying to
one from Hardisty, essentially called for Zu-
bulake’s termination: ‘‘Our biggest strength
as a firm and as a desk is our ability to share
information and relationships. Any person
who threatens this in any way should be
firmly dealt withTTTT [B]elieve me that a lot
of other [similar] instances have occurred
earlier.’’ 20
Thus, the relevant people at UBS antici-
pated litigation in April 2001. The duty to
18. 2/12/03 Deposition of Matthew Chapin at
247:14–247:19, Ex. B. to the 9/15/03 Letter from
James Batson to the Court (‘‘Batson Ltr.’’).
19. See 4/27/01 e-mail, Ex. A to Batson Ltr.
20. Id.
21. Cf. Concord Boat Corp. v. Brunswick Corp.,
No. LR–C–95–781, 1997 WL 33352759, at *4
(E.D.Ark. Aug. 29, 1997) (‘‘to hold that a corpo-
ration is under a duty to preserve all e-mail
potentially relevant to any future litigation would
be tantamount to holding that the corporation
must preserve all e-mailTTTT Such a proposition
is not justified.’’).
22. See, e.g., The Sedona Principles: Best Prac-
tices, Recommendations & Principles for Address-
ing Electronic Document Discovery cmt 6.h (Se-
217
preserve attached at the time that litigation
was reasonably anticipated.
2. Scope
[7] The next question is: What is the
scope of the duty to preserve? Must a cor-
poration, upon recognizing the threat of liti-
gation, preserve every shred of paper, every
e-mail or electronic document, and every
backup tape? The answer is clearly, ‘‘no’’.
Such a rule would cripple large corporations,
like UBS, that are almost always involved in
litigation.21 As a general rule, then, a party
need not preserve all backup tapes even
when it reasonably anticipates litigation.22
[8, 9] At the same time, anyone who an-
ticipates being a party or is a party to a
lawsuit must not destroy unique, relevant
evidence that might be useful to an adver-
sary. ‘‘While a litigant is under no duty to
keep or retain every document in its posses-
sion TTT it is under a duty to preserve what it
knows, or reasonably should know, is rele-
vant in the action, is reasonably calculated to
lead to the discovery of admissible evidence,
is reasonably likely to be requested during
discovery and/or is the subject of a pending
discovery request.’’ 23
i. Whose Documents Must Be Re-
tained?
The broad contours of the duty to preserve
are relatively clear. That duty should cer-
tainly extend to any documents or tangible
things (as defined by Rule 34(a)) 24 made by
dona Conference Working Group Series 2003)
(‘‘Absent specific circumstances, preservation ob-
ligations should not extend to disaster recovery
backup tapesTTTT’’).
23. Turner, 142 F.R.D. at 72 (quoting William T.
Thompson Co. v. General Nutrition Corp., 593
F.Supp. 1443, 1455 (C.D.Cal.1984)).
24. See Fed.R.Civ.P. 34(a) (defining the term
‘‘document’’ to ‘‘includ[e] writings, drawings,
graphs, charts, photographs, phonorecords, and
other data compilations from which information
can be obtained, translated, if necessary, by the
respondent through detection devices into rea-
sonably usable form’’); see also Zubulake I, 217
F.R.D. at 316–17 (holding that the term ‘‘docu-
ment,’’ within the meaning of Rule 34(a), in-
cludes e-mails contained on backup tapes).
218 220 FEDERAL RULES DECISIONS
individuals ‘‘likely to have discoverable infor-
mation that the disclosing party may use to
support its claims or defenses.’’ 25 The duty
also includes documents prepared for those
individuals, to the extent those documents
can be readily identified (e.g., from the ‘‘to’’
field in e-mails). The duty also extends to
information that is relevant to the claims or
defenses of any party, or which is ‘‘relevant
to the subject matter involved in the ac-
tion.’’ 26 Thus, the duty to preserve extends
to those employees likely to have relevant
information—the ‘‘key players’’ in the case.
In this case, all of the individuals whose
backup tapes were lost (Chapin, Hardisty,
Tong, Datta and Clarke) fall into this catego-
ry.27
ii. What Must Be Retained?
A party or anticipated party must retain
all relevant documents (but not multiple
identical copies) in existence at the time the
duty to preserve attaches, and any relevant
documents created thereafter. In recogni-
tion of the fact that there are many ways to
manage electronic data, litigants are free to
choose how this task is accomplished. For
example, a litigant could choose to retain all
then-existing backup tapes for the relevant
personnel (if such tapes store data by indi-
vidual or the contents can be identified in
good faith and through reasonable effort),
and to catalog any later-created documents
in a separate electronic file. That, along
with a mirror-image of the computer system
taken at the time the duty to preserve at-
taches (to preserve documents in the state
they existed at that time), creates a complete
set of relevant documents. Presumably
there are a multitude of other ways to
achieve the same result.
iii. Summary of Preservation Obli-
gations
[10] The scope of a party’s preservation
obligation can be described as follows: Once
25. Fed.R.Civ.P. 26(a)(1)(A).
26. Fed.R.Civ.P. 26(b)(1).
27. See 9/26/03 Tr. at 17 (Statement of Norman C.
Simon agreeing that the duty to preserve applied
to the documents’ of Chapin, Hardisty, Tong,
Datta and Clarke).
a party reasonably anticipates litigation, it
must suspend its routine document reten-
tion/destruction policy and put in place a
‘‘litigation hold’’ to ensure the preservation of
relevant documents. As a general rule, that
litigation hold does not apply to inaccessible
backup tapes (e.g., those typically maintained
solely for the purpose of disaster recovery),
which may continue to be recycled on the
schedule set forth in the company’s policy.
On the other hand, if backup tapes are acces-
sible (i.e., actively used for information re-
trieval), then such tapes would likely be sub-
ject to the litigation hold.
[11] However, it does make sense to cre-
ate one exception to this general rule. If a
company can identify where particular em-
ployee documents are stored on backup
tapes, then the tapes storing the documents
of ‘‘key players’’ to the existing or threatened
litigation should be preserved if the informa-
tion contained on those tapes is not otherwise
available. This exception applies to all back-
up tapes.
iv. What Happened at UBS After
August 2001?
By its attorney’s directive in August 2002,
UBS endeavored to preserve all backup
tapes that existed in August 2001 (when Zu-
bulake filed her EEOC charge) that captured
data for employees identified by Zubulake in
her document request, and all such monthly
backup tapes generated thereafter. These
backup tapes existed in August 2002, because
of UBS’s document retention policy, which
required retention for three years.28 In Au-
gust 2001, UBS employees were instructed to
maintain active electronic documents pertain-
ing to Zubulake in separate files.29 Had
these directives been followed, UBS would
have met its preservation obligations by pre-
serving one copy of all relevant documents
28. See Zubulake I, 217 F.R.D. at 314 (‘‘Nightly
backup tapes were kept for twenty working days,
weekly tapes for one year, and monthly tapes for
three years.’’).
29. See Zubulake III, 216 F.R.D. at 287.
 ZUBULAKE v. UBS WARBURG LLC
Cite as 220 F.R.D. 212 (S.D.N.Y. 2003)
that existed at, or were created after, the
time when the duty to preserve attached.
In fact, UBS employees did not comply
with these directives. Three backup tapes
containing the e-mail files of Chapin, Har-
disty, Clarke and Datta created after April
2001 were lost, despite the August 2002 di-
rective to maintain those tapes. According
to the UBS document retention policy, these
three monthly backup tapes from April and
June 2001 should have been retained for
three years.30
The two remaining lost backup tapes were
for the time period after Zubulake filed her
EEOC complaint (Rose Tong’s tapes for Au-
gust and October 2001). UBS has offered no
explanation for why these tapes are missing.
UBS initially argued that Tong is a Hong
Kong based UBS employee and thus her
backup tapes ‘‘are not subject to any internal
retention policy.’’ 31 However, UBS subse-
quently informed the Court that there was a
document retention policy in place in Hong
Kong starting in June 2001, although it only
required that backup tapes be retained for
one month.32 It also instructed employees
‘‘not [to] delete any emails if they are aware
that TTT litigation is pending or likely, or
during TTT a discovery process.’’ 33 In any
event, it appears that UBS did not directly
order the preservation of Tong’s backup
tapes until August 2002, when Zubulake
made her discovery request.34
In sum, UBS had a duty to preserve the
six-plus backup tapes (that is, six complete
backup tapes and part of a seventh) at issue
here.
B. Remedies
As noted, Zubulake has requested three
remedies for UBS’s spoliation of evidence. I
consider each remedy in turn.
30. See supra note 28. According to a chart pre-
pared by UBS’s attorneys and presented during
oral arguments, the three backup tapes of U.S.
personnel were in fact deleted between October
2001 and February 2002—after UBS staff were
warned to retain documents, but before they
were told specifically to preserve backup tapes.
31. 9/17/03 Letter from Kevin Leblang to the
Court (‘‘Leblang Ltr.’’).
32. See 10/14/03 Ltr. at 2–3; see also UBS Asia
policy for ‘‘Retention of Back-up Tapes of Email
219
1. Reconsideration of the Cost–Shift-
ing Order
[12] Zubulake’s request that this Court
re-consider its July 24, 2003, Order in Zubu-
lake III is inappropriate. At the time that
motion was made, the Court was well aware
that certain e-mails had not been retained
and that certain backup tapes were missing.35
Indeed, Zubulake urged that these missing
backup tapes ‘‘be considered as a factor in
why the costs should be shifted to defen-
dants,’’ in part because she would have cho-
sen one of the lost tapes as part of the court-
ordered sample restoration.36 And these lost
tapes and deleted e-mails did, in fact, inform
my resolution of the cost-shifting motion. In
Zubulake III, in my analysis of the marginal
utility factors, I specifically noted that ‘‘there
is some evidence that Chapin was concealing
and deleting especially relevant e-mails.’’ 37
There is therefore no need to reconsider that
ruling in light of the instant motion; this
evidence already played a role in the cost-
shifting decision.
2. Adverse Inference
[13] Zubulake next argues that UBS’s
spoliation warrants an adverse inference in-
struction. Zubulake asks that the jury in
this case be instructed that it can infer from
the fact that UBS destroyed certain evidence
that the evidence, if available, would have
been favorable to Zubulake and harmful to
UBS. In practice, an adverse inference in-
struction often ends litigation—it is too diffi-
cult a hurdle for the spoliator to overcome.
The in terrorem effect of an adverse infer-
ence is obvious. When a jury is instructed
that it may ‘‘infer that the party who de-
Servers,’’ (‘‘UBS Asia Policy’’) Ex. F to 10/14/03
Ltr.
33. UBS Asia Policy at 2.
34. See 9/26/03 Tr. at 31, 35–36.
35. See 9/26/03 Tr. at 27.
36. 6/17/03 Oral Argument Transcript (Statement
of James Batson).
37. 216 F.R.D. at 287.
220 220 FEDERAL RULES DECISIONS
stroyed potentially relevant evidence did so
‘out of a realization that the [evidence was]
unfavorable,’ ’’ 38 the party suffering this in-
struction will be hard-pressed to prevail on
the merits. Accordingly, the adverse infer-
ence instruction is an extreme sanction and
should not be given lightly.39
[14, 15] A party seeking an adverse infer-
ence instruction (or other sanctions) based on
the spoliation of evidence must establish the
following three elements: (1) that the party
having control over the evidence had an obli-
gation to preserve it at the time it was
destroyed; (2) that the records were de-
stroyed with a ‘‘culpable state of mind’’ and
(3) that the destroyed evidence was ‘‘rele-
vant’’ to the party’s claim or defense such
that a reasonable trier of fact could find that
it would support that claim or defense.40 In
this circuit, a ‘‘culpable state of mind’’ for
purposes of a spoliation inference includes
ordinary negligence.41 When evidence is de-
stroyed in bad faith (i.e., intentionally or
willfully), that fact alone is sufficient to dem-
onstrate relevance.42 By contrast, when the
destruction is negligent, relevance must be
proven by the party seeking the sanctions.43
a. Duty to Preserve
[16] For the reasons already discussed,
UBS had—and breached—a duty to preserve
38. Linnen v. A.H. Robins Co., No. 97–2307, 1999
WL 462015, at *11 (Mass.Super. June 16, 1999)
(alteration in original) (quoting Blinzler v. Mar-
riott International, Inc., 81 F.3d 1148, 1158 (1st
Cir.1996)).
39. See Mary Kay Brown & Paul D. Weiner, Digi-
tal Dangers: A Primer on Electronic Evidence in
the Wake of Enron, 74 Pa. B.A.Q. 1, 7 (2003)
(listing ‘‘severe sanctions, such as adverse infer-
ence instructions’’ imposed by courts when ‘‘rel-
evant electronic evidence was not preserved, or
was intentionally destroyed’’); but see Mosel Vi-
telic Corp. v. Micron Technology, Inc., 162
F.Supp.2d 307, 315 (D.Del.2000) (‘‘adverse infer-
ence instructions are one of the least severe
sanctions which the court can impose’’).
40. Byrnie v. Town of Cromwell, 243 F.3d 93, 107–
12 (2d Cir.2001).
41. See Residential Funding Corp. v. DeGeorge Fin.
Corp., 306 F.3d 99, 108 (2d Cir.2002).
42. See id. at 109.
the backup tapes at issue. Zubulake has
thus established the first element.
b. Culpable State of Mind
Zubulake argues that UBS’s spoliation was
‘‘intentional—or, at a minimum, grossly neg-
ligent.’’ 44 Yet, of dozens of relevant backup
tapes, only six and part of a seventh are
missing. Indeed, UBS argues that the tapes
were ‘‘inadvertently recycled well before
plaintiff requested them and even before she
filed her complaint [in February 2002].’’ 45
But to accept UBS’s argument would ig-
nore the fact that, even though Zubulake had
not yet requested the tapes or filed her
complaint, UBS had a duty to preserve those
tapes. Once the duty to preserve attaches,
any destruction of documents is, at a mini-
mum, negligent.46 (Of course, this would not
apply to destruction caused by events outside
of the party’s control, e.g., a fire in UBS’s
offices).
Whether a company’s duty to preserve ex-
tends to backup tapes has been a grey area.
As a result, it is not terribly surprising that a
company would think that it did not have a
duty to preserve all of its backup tapes, even
when it reasonably anticipated the onset of
litigation. Thus, UBS’s failure to preserve
all potentially relevant backup tapes was
merely negligent, as opposed to grossly neg-
ligent or reckless.47
43. See id.
44. See Batson Ltr. at 2.
45. Leblang Ltr. at 2.
46. See Black’s Law Dictionary (6th ed.1991) (de-
fining ‘‘negligence’’ as ‘‘that legal delinquency
which results whenever a man fails to exhibit the
care which he ought to exhibit, whether it be
slight, ordinary, or great. It is characterized
chiefly by inadvertence, thoughtlessness, inatten-
tion, and the likeTTTT’’). Cf. Keir v. Unumprovi-
dent Corp., No. 02 Civ. 8781, 2003 WL 21997747,
at *13 (S.D.N.Y. Aug.22, 2003) (criticizing defen-
dant for loss of e-mails even though loss oc-
curred ‘‘through the fault of no one,’’ because
‘‘[i]f UnumProvident had been as diligent as it
should have been TTT many fewer [backup] tapes
would have been inadvertently overwritten.’’).
47. Litigants are now on notice, at least in this
Court, that backup tapes that can be identified as
storing information created by or for ‘‘key play-
ers’’ must be preserved.
 ZUBULAKE v. UBS WARBURG LLC
Cite as 220 F.R.D. 212 (S.D.N.Y. 2003)
UBS’s destruction or loss of Tong’s backup
tapes, however, exceeds mere negligence.
UBS failed to include these backup tapes in
its preservation directive in this case, not-
withstanding the fact that Tong was the hu-
man resources employee directly responsible
for Zubulake and who engaged in continuous
correspondence regarding the case. More-
over, the lost tapes covered the time period
after Zubulake filed her EEOC charge, when
UBS was unquestionably on notice of its
duty to preserve. Indeed, Tong herself took
part in much of the correspondence over
Zubulake’s charge of discrimination. Thus,
UBS was grossly negligent, if not reckless, in
not preserving those backup tapes.
Because UBS was negligent—and possibly
reckless—Zubulake has satisfied her burden
with respect to the second prong of the spoli-
ation test.
c. Relevance
[17] Finally, because UBS’s spoliation
was negligent and possibly reckless, but not
willful, Zubulake must demonstrate that a
reasonable trier of fact could find that the
missing e-mails would support her claims.48
In order to receive an adverse inference in-
struction, Zubulake must demonstrate not
only that UBS destroyed relevant evidence
as that term is ordinarily understood,49 but
also that the destroyed evidence would have
been favorable to her.50 ‘‘This corroboration
requirement is even more necessary where
the destruction was merely negligent, since
in those cases it cannot be inferred from the
conduct of the spoliator that the evidence
would even have been harmful to him.’’ 51
48. See Byrnie, 243 F.3d at 107–12.
49. See Fed.R.Evid. 401; Fed.R.Civ.P. 26(b)(1)
50. See Residential Funding, 306 F.3d at 108–09
(‘‘Although we have stated that, to obtain an
adverse inference instruction, a party must estab-
lish that the unavailable evidence is ‘relevant’ to
its claims or defenses, our cases make clear that
‘relevant’ in this context means something more
than sufficiently probative to satisfy Rule 401 of
the Federal Rules of Evidence. Rather, the party
seeking an adverse inference must adduce suffi-
cient evidence from which a reasonable trier of
fact could infer that ‘the destroyed or unavailable
evidence would have been of the nature alleged
by the party affected by its destruction.’ ’’) (cita-
tions, footnote, and alterations omitted).
221
This is equally true in cases of gross negli-
gence or recklessness; only in the case of
willful spoliation is the spoliator’s mental
culpability itself evidence of the relevance of
the documents destroyed.52
On the one hand, I found in Zubulake I
and Zubulake III that the e-mails contained
on UBS’s backup tapes were, by-and-large,
relevant in the sense that they bore on the
issues in the litigation.53 On the other hand,
Zubulake III specifically held that ‘‘nowhere
(in the sixty-eight e-mails produced to the
Court) is there evidence that Chapin’s dislike
of Zubulake related to her gender.’’ 54 And
those sixty-eight e-mails, it should be empha-
sized, were the ones selected by Zubulake as
being the most relevant among all those pro-
duced in UBS’s sample restoration. There is
no reason to believe that the lost e-mails
would be any more likely to support her
claims.
Furthermore, the likelihood of obtaining
relevant information from the six-plus lost
backup tapes at issue here is even lower than
for the remainder of the tapes, because the
majority of the six-plus tapes cover the time
prior to the filing of Zubulake’s EEOC
charge. The tape that is most likely to con-
tain relevant e-mails is Tong’s August 2001
tape—the tape for the very month that Zu-
bulake filed her EEOC charges. But the
majority of the e-mails on that tape are
preserved on the September 2001 tape.
Thus, there is no reason to believe that pecu-
liarly unfavorable evidence resides solely on
that missing tape. Accordingly, Zubulake
has not sufficiently demonstrated that the
lost tapes contained relevant information.55
51. Turner, 142 F.R.D. at 77 (citing Stanojev v.
Ebasco Services, Inc., 643 F.2d 914, 924 n. 7 (2d
Cir.1981)).
52. See Residential Funding, 306 F.3d at 109.
53. See Zubulake I, 217 F.R.D. at 316–17; Zubu-
lake III, 216 F.R.D. at 284–87.
54. 216 F.R.D. at 286.
55. See generally Turner, 142 F.R.D. at 77
(‘‘Where, as here, there is no extrinsic evidence
whatever tending to show that the destroyed
evidence would have been unfavorable to the
spoliator, no adverse inference is appropriate.’’);
222 220 FEDERAL RULES DECISIONS
d. Summary
In sum, although UBS had a duty to pre-
serve all of the backup tapes at issue, and
destroyed them with the requisite culpability,
Zubulake cannot demonstrate that the lost
evidence would have supported her claims.
Under the circumstances, it would be inap-
propriate to give an adverse inference in-
struction to the jury.
3. UBS Must Pay the Costs of Addi-
tional Depositions
[18] Even though an adverse inference
instruction is not warranted, there is no
question that e-mails that UBS should have
produced to Zubulake were destroyed by
UBS. That being so, UBS must bear Zubu-
lake’s costs for re-deposing certain witnesses
for the limited purpose of inquiring into is-
sues raised by the destruction of evidence
and any newly discovered e-mails. In partic-
ular, UBS is ordered to pay the costs of re-
deposing Chapin, Hardisty, Tong, and Josh
Varsano (a human resources employee in
charge of the Asian Equities Sales Desk and
known to have been in contact with Tong
during August 2001).56
IV. CONCLUSION
For the reasons set forth above, Zubu-
lake’s motions for an adverse inference in-
struction and for reconsideration of the
Court’s July 24, 2003, Order are denied.
Her motion seeking costs for additional depo-
sitions is granted.
SO ORDERED.
, In determining the propriety of a class
Concord Boat Corp. v. Brunswick Corp., 1997 WL
33352759, at *7 (E.D.Ark.1997) (‘‘It would sim-
ply be inappropriate to give an adverse inference
instruction based upon speculation that deleted
e-mails would be unfavorable to Defendant’s
case.’’).
Gajanan VENGURLEKAR and Umesh
Pachpande, individually and on behalf
of all others similarly situated, Plain-
tiffs,
v.
SILVERLINE TECHNOLOGIES, LTD.,
Seranova, Inc., Silverline Technologies,
Inc., Dr. Nirmal Jain, Ravi Subramani-
an, Kulathu Subramanian and Doe Cor-
porations 1–20, Defendants.
No. 02 Civ. 7724(SAS).
United States District Court,
S.D. New York.
Nov. 24, 2003.
Background: Employees sued employer,
asserting claims under the Employee Re-
tirement Income Security Act (ERISA)
and the Fair Labor Standards Act
(FLSA), as well as state statutory wage
claims and state common law claims.
Holdings: On the employees’ request for
class certification, the District Court,
Scheindlin, J., held that:
(1) numerosity requirement for class certi-
fication of ERISA claims was not satis-
fied;
(2) employees were not similarly situated
to any non-exempt employees who po-
tentially had FLSA claims; and
(3) employees failed to satisfy the typicali-
ty requirement for class certification as
to their state law claims.
Request denied.
1. Federal Civil Procedure O174
action, the question is not whether the plain-
tiff or plaintiffs have stated a cause of action
or will prevail on the merits, but rather
whether the requirements of the class action
56. See 9/26/03 Tr. at 26 (statement of James
Batson, seeking to re-depose only these four em-
ployees).